Analysis of Judgment No. 50797 of 2023 on Fraudulent Bankruptcy

The recent judgment no. 50797 of November 17, 2023, issued by the Court of Cassation, addresses a matter of significant importance in the field of bankruptcy and criminal law: fraudulent bankruptcy. This ruling provides important clarifications regarding the configurability of the crime, particularly in the context of the transfer of assets belonging to a bankrupt company.

The Context of the Judgment

The case in question involves M. B., accused of having transferred assets at a low price during the bankruptcy proceedings of his company. The Court of Appeal of Brescia had rejected the reclamation request made by a third-party acquirer of the diverted goods. The central issue was whether such rejection could influence the configurability of the crime of fraudulent bankruptcy.

Fraudulent bankruptcy - Rejection, by the delegated judge in bankruptcy, of the reclamation request for the diverted asset presented by the third-party acquirer - Irrelevance for the configurability of the crime - Reasons. In the context of fraudulent bankruptcy, in the case of a low-price transfer of assets belonging to the bankrupt, the configurability of the crime, given the mutual autonomy between bankruptcy proceedings and criminal proceedings, cannot be excluded by the rejection by the delegated judge of the reclamation request proposed by the third-party acquirer.

The Reasons for the Judgment

The Court emphasized that the configurability of fraudulent bankruptcy does not depend on the decision of the delegated judge regarding the reclamation of assets. This aspect is crucial, as it highlights the distinction between criminal proceedings and bankruptcy proceedings, both of which are autonomous yet interconnected. In other words, the outcome of one procedure does not prejudice the other.

  • The transfer of assets at a low price is a behavior that can constitute the crime of fraudulent bankruptcy.
  • The rejection of the reclamation request does not exclude the criminal liability of the accused.
  • The Court referred to specific provisions of the Bankruptcy Law, particularly articles 93, 216, and 223, which govern the consequences of fraudulent acts in the context of bankruptcy.

Conclusions

Judgment no. 50797 of 2023 serves as an important reference point for legal practitioners, as it clarifies the relationship between bankruptcy and criminal procedures. The Court reiterates that illicit behaviors such as the transfer of assets at a low price cannot escape criminal justice, regardless of the decisions made in the context of the bankruptcy procedure. The clarity of this ruling calls for greater attention from entrepreneurs and professionals in the sector to avoid behaviors that may be characterized as fraudulent bankruptcy.

Bianucci Law Firm